HOWARD DOZIER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Defendant Dozier was convicted of breaking and entering and appealed the trial court's denial of his motion for post-conviction relief. The court held that prosecutorial comments on the defendant's invocation of Fifth Amendment rights constitute fundamental constitutional error that can be collaterally attacked through post-conviction motion even without trial objection.
A fundamental error of constitutional dimension, such as prosecutorial comment on a defendant's Fifth Amendment privilege to remain silent, may be collaterally attacked through post-conviction relief motion even in the absence of trial objection, and harmless error analysis does not apply to such error.
[1] Comment upon a defendant's exercise of the Fifth Amendment privilege to remain silent constitutes reversible error.
[2] Reversible error based on comment on a defendant's exercise of the Fifth Amendment privilege is not subject to the doctrine of harmless error.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is no doubt that such a colloquy under Florida law is impermissible and of such magnitude that it constitutes reversible error for which the doctrine of harmless error is not applicable.”
Establishes that prosecutorial comment on Fifth Amendment rights is fundamental, non-harmless error under Florida law.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDozier was convicted of breaking and entering a dwelling house. His direct appeal was affirmed. At trial, during prosecution examination of a police o…
The full statement of facts, procedural history, and disposition for this case are member content.
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MOORE, Judge.
This is another case which involves comment upon a defendant’s exercise of his Fifth Amendment privilege to remain silent.
The appellant (hereinafter referred to as defendant) was convicted of the charge of breaking and entering a dwelling house. His direct appeal of that conviction resulted in an affirmance and he subsequently filed a Motion to Vacate Judgment and Sentence pursuant to Fla.R.Crim.P. 3.850. The trial court’s denial of said motion without hearing is the subject of this appeal.
Defendant alleges that the following colloquy occurred at his trial when the prosecution was examining a police officer:
“Q. Did you advise him of his constitutional rights?
A. Yes, sir. I did.
Q. Did you ask him whether or not he understood these rights?
A. Yes, I did.
Q. Did he indicate to you whether or not he did or did not?
A. He indicated that he did understand.
Q. Okay, did you continue the questioning then and ask him some questions?
A. I asked him where he was and everything and he indicated he did not wish to talk so no further questioning was conducted.”
There is no doubt that such a colloquy under Florida law is impermissible and of such magnitude that it constitutes reversible error for which the doctrine of harmless error is not applicable. Bennett v. State, 316 So. 2d 41 (Fla.1975); Shannon v. State, 335 So. 2d 5 (Fla.1976). The sole question remaining for our determination is whether or not the defendant should have been allowed to collaterally attack this error through a Motion for Post Conviction Relief in the absence of an objection at trial. If not, the trial court was correct in denying his motion without a hearing. If such error may be so attacked, the trial court should have conducted an evidentiary hearing to determine the validity of the alleged facts and enter an appropriate ruling thereon.
Our decision is controlled by our previous opinions in Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976); Carter v. State, 335 So. 2d 875 (Fla. 4th DCA 1976); Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976); Sylvester v. State, 341 So. 2d 203 (Fla. 4th DCA 1977); Royal v. State, 347 So. 2d 742 (Fla. 4th DCA 1977). A fundamental error of constitutional dimension may be collaterally attacked.
Accordingly, this cause is reversed and remanded for an evidentiary hearing in accordance with this opinion.
REVERSED AND REMANDED.
DOWNEY and DAUKSCH, JJ., concur.
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Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)…850 motion notwithstanding that it could have been, but was not, raised on direct appeal.4 O’Neal v. State, 308 So. 2d 569 (Fla. 2d DCA 1975), overruled on other grounds, Roberts v. State, 320 So. 2d 832 (Fla. 2d DCA 1975); see also Dozier v. State, 361 So. 2d 727 (Fla. 4th DCA 1978) (holding that a fundamental error may be collaterally attacked, but incorrectly holding that a comment on defendant’s right to remain silent is a fundamental error, Clark v. State, 363 So. 2d 331 (Fla.1978)); Flowers v. State, 35…
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Roban v. State, 384 So. 2d 683 (Fla. 4th DCA 1980)…nt a mistrial, the court commits an error of constitutional dimension that is reversible without consideration of the doctrine of harmless error. Bennett v. State, 316 So. 2d 41 (Fla.1975); Shannon v. State, 335 So. 2d 5 (Fla.1976); Dozier v. State, 361 So. 2d 727 (Fla. 4th DCA 1978). The State contends that appellant Roban failed to make a contemporaneous objection to the question and thus under Clark v. State, 363 So. 2d 331 (Fla.1978), the point is waived. We reject that contention because the question as…
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Parker v. Sec'y FOR THE Dep't OF Corr., 331 F.3d 764 (11th Cir. 2003)…ld be corrected whenever the issue was presented, on direct appeal or in post-conviction proceedings. See Nova v. Florida, 439 So. 2d 255 (Fla.Dist.Ct.App.1983), limited by Moreland v. Florida, 582 So. 2d 618, 619 n. 1 (Fla.1991); Dozier v. Florida, 361 So. 2d 727 (Fla.Dist.Ct.App.1978); Flowers v. Florida, 351 So. 2d 387 (Fla.Dist.Ct.App.1977). The clear import of Parker’s fundamental error argument was that he was entitled to relief in his state habeas proceedings for the substantive jury instruction error,…
Authorities Cited
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- Bennett v. State, 316 So. 2d 41 (Fla. 1975)
- Bostic v. State, 332 So. 2d 349 (Fla. 4th DCA 1976)
- Am. Emp'rs Ins. Co. & Snead Constr. Corp. v. J. H. Atkins & Assocs., Inc., 332 So. 2d 349 (Fla. 4th DCA 1976)
- Collins v. State, 340 So. 2d 516 (Fla. 4th DCA 1976)
- Sylvester v. State, 341 So. 2d 203 (Fla. 4th DCA 1977)
- Richmond E. Royal v. State, 347 So. 2d 742 (Fla. 4th DCA 1977)
- Carter v. State, 335 So. 2d 875 (Fla. 4th DCA 1976)